When divorced women take their children away from their fathers for no reason, the constitutional state often stands by and does nothing. CVP National Councilor Reto Wehrli wants to change that and calls for more rights, but also more obligations. (c) March 26, 2011 Bieler Tagblatt. By Lotti Teuscher Mr. Wehrli, do you understand that I definitely don't want to be a man during a divorce?
Reto Wehrli: I can't do much with this statement.
As a woman, I receive children and alimony, at most also women's alimony.
I can falsely accuse the father of abuse or deprive him of the children despite visitation rights without being prosecuted. This is a blatant exaggeration, in most cases exaggerated, but it has a kernel of truth. In particular, the enforcement of judgments seems to be a problem. If the judgments are not followed, for example if visitation rights are not granted, the constitutional state would have to say: Well, the children will now be released immediately to the parent who has the right to visit, otherwise we will enforce this forcibly. Unfortunately, this no longer happens with the desired clarity.
For what reason?
This can almost only be answered psychologically. The judges in particular, I emphasize that the judges and not the judges, have built up a partially incorrect understanding. They believe that they have to approach things with incredible softness. This is a misunderstanding of the job of a judge, who must apply and enforce the law.
Recently, the media has increasingly focused on men whose children are taken away from their mothers despite visitation rights.
Is this a phenomenon that is suddenly being hyped? Fortunately, this is far from the norm. Nevertheless, even if it is a small percentage, we must not lose sight of such cases. It is not acceptable to create a gray area that we leave to the discretion of any actors.
What options would judges have to force a mother to grant visitation rights?
When I was a court clerk 20 years ago, it was still common practice to issue an order saying: The child will be released or the police will come in plain clothes and take him out. Today everyone is screaming: No, that can't be right! In most cases, the threat is enough. Ultimately, the constitutional state must take itself seriously and enforce what it has previously decided.
It is said that the children would be traumatized if visitation rights were enforced by the police.
Such parents say: I won't give up my child, and if you don't agree with me, he or she will be traumatized. But it is the parent who denies the other the child who bears responsibility for any bad consequences. You cannot blackmail the other parent and the constitutional state by withholding your own child.
Nobody seems to think about the fact that a child will be traumatized if he or she is not allowed to see his father.
This brings us back to the normal range, because so far we had only discussed the extraordinary case. My postulate in the National Council is not aimed at child abductions or the retention of children, but at a solution for the 90 percent of divorces that are the norm. The aim of my postulate is that children are allowed to have a full relationship with both parents. Both parents should exercise their rights and responsibilities.
You are now discussing your fight for joint custody and demanding that this become the norm.
Exactly. This is the basis of everything. You rarely know exactly what the children want, but you talk about the child's best interests; everyone uses this term for their own desires. The only thing that can be said with certainty is that children generally want an intact relationship with both parents, which is perceived with responsibility and where time is spent.
Parents who have mutually agreed on joint custody are very satisfied with it.
But how is joint custody supposed to work if the parents are hopelessly at odds and no longer speak to each other sensibly? I have never experienced a divorce during which the parents said: We have a wonderful relationship, but we are divorcing because of the children. It's the other way around: the relationship between husband and wife no longer works, the relationship with the children works. It is therefore unnecessary to include the issue of children in the parental dispute at all. Rather, one should assume that the relationship with the children remains stable. Both parents continue to have responsibilities, rights and obligations regardless of marital status.
What role does the court play in this?
Lawmakers and society must make it clear: you parents have a responsibility for your children simply because you are father and mother. Society must create awareness that addresses all parents: You cannot get rid of your responsibility for your children. No matter what your marital status, no matter where you live, no matter what job you do, you have to care for your children until they turn 18. This would be a clear message and a small paradigm shift.
Let's take the example of a couple from Zealand who have been separated for years and therefore have joint custody: the mother refuses to have any conversation and the father is denied the opportunity to exercise his rights and obligations towards the child.
What now? There are already measures in guardianship law for shared parental custody that need to be refined in the revised law. If one parent behaves absolutely stubbornly and prevents minimal constructive interaction with the other, then there must be consequences.
The responsible guardianship authority says its hands are tied because there is no court ruling on visitation rights.
You are now talking about an isolated case, the circumstances of which I do not know. In principle, however, there is the possibility that the guardianship authority can take graduated measures. She should intervene constructively as early as possible and say to the parents: sorry, you have a responsibility, we are not interested in your dispute and we are now ordering mediation in the best interests of the child, for example. And if one of you doesn't participate, you will have to face consequences. But sometimes the guardianship authorities are a bit too passive.
Their motion for joint custody was well underway.
Now Federal Councilor Simonetta Sommaruge - as it is said, under pressure from SP women - has coupled the motion with a second request: The maintenance contributions of divorced fathers should be set so high that they are left with less than the subsistence minimum. Why this? You would have to ask Mrs Sommaruga, I don't know. The two desires must not be linked because they have nothing to do with each other. We had done very good preparatory work under Federal Councilor Blocher and Federal Councilor Widmer-Schlumpf. The project went through consultation, was revised again and would now be ready for consideration in Parliament. The crux of the matter is that Ms. Sommaruga's maneuver is delaying the matter in Parliament.
What do the SP women want?
Hardly anyone in the entire parliament understood Ms. Sommaruga's decision. The impression has arisen that the coupling was made to satisfy SP women.
The association of responsible fathers and mothers therefore sends Simonetta Sommaruga paving stones;
so far she has received over 1,500. Does that do anything? I don't know that. But the campaign documents that shared parental custody is a very serious concern for society, which is supported by broad sections of the population and also by women. Since I submitted the postulate in 2004, an intensive discussion has arisen; To put it bluntly, the matter has been “eaten”. Once a month, a guard with torches is held in front of the Federal Palace on Monday. This is also a symbol of acceptance. It is truly incomprehensible that Ms Sommaruga is now delaying the matter in Parliament.
For years, the question of fault has no longer played a role in divorces.
From your perspective as a lawyer, is this good or bad? I believe that this is fundamentally correct. In a relationship that has, in most cases, lasted years, there are such complex internal issues that the question of guilt can hardly be clarified. The quip that it always takes two to argue has a kernel of truth.
But there are also exceptions.
In individual cases the impression arises that one partner is making it easy for himself to say goodbye to the marriage. This person follows a momentary impulse, a wish or an idea, says “ciao” and possibly also takes the children with them. The other partner is amazed and then has to pay too. But that's the exception.
Should the question of guilt play a role in such blatant cases?
I ask myself this too. I believe that in extreme cases there is no satisfactory solution. Of course, one could decide that there are legal consequences if someone walks away from a marriage without cause. But that is hardly practical, because the lawyer will say in court: My client had reasons, she suffered severe mental anguish. How should one clarify mental anguish? This is extremely difficult.
If the question of guilt were clarified, couples could wash their dirty laundry in court, which could have a cleansing and relieving effect.
I understand this argument, but believe me: Washing dirty laundry in court, with the help of lawyers, is extremely destructive. Most couples have already let off steam before the divorce. They accused each other of all sorts of bad things. It would be helpful if those seeking a divorce were required to go through mediation; In other words, to enter into a process where they learn to interact with each other in a minimally constructive manner again.
Mediation is now touted as a panacea.
But what if one parent doesn't want to find a solution and simply says no to every suggestion from the other? Mediation is not a miracle cure, but it is a suitable instrument for achieving relief in a large number of cases. If a parent behaves in a blatantly obstructive manner, if he refuses any positive approach, legal consequences should be provided for. Then it must be said that this person is not suitable to practice joint custody. If necessary, parental responsibility must be taken away from this person.
Which is not the case at the moment.
Yes, but that is why we are seeking new legislation. Again: That's exactly why it's so sad that Ms. Sommaruga is now blocking the discussion. Parental responsibility is accepted, but we still have to find good solutions in individual questions.
We've talked for a long time now about quarreling couples.
You yourself have been married and a father for a long time. Do you know the secret to a good marriage? If there really was a miracle cure for a good marriage, someone would be in business with it. No, there is no secret to a good marriage. At most, what Goethe said in Faust applies: “Whoever strives hard, we can redeem him.”
What does this mean when applied to a couple with children?
It is a permanent, never-ending task to develop yourself and together, to make the effort again and again. Then you will experience wonderfully beautiful moments, but also difficult ones that you can manage and overcome. What a prospect of happiness in life!